CRDB Bank Limited vs John Kagimbo Lwambagaza (Commercial Civil Case No. 10 of 2000) [2000] TZHC 349 (4 June 2000)

1 IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT DAR ES SALAAM COMMERCIAL CIVIL CASE NO.10 OF 2000 CRDB BANK LIMITED ............ PLAINTIFF VERSUS JOHN KAGIMBO LWAMBAGAZA ........ DEFENDANT R U L I N G NSEKELA,J The respondent Bank (CRDB Bank Limited) has sued the applicant, one John Kagimbo Lwambagaza for the recovery of Tshs 4 1,996,636/17 being the outstanding balance of a loan the respondent advanced to the applicant. Since the suit was instituted under Order XXXV of the CPC (Summary Procedure), the applicant before filing the defence, has first to seek leave to appear and defend the suit, hence this application. The application has been brought under XXXV of the CPC praying for the following order, namely that - "the applicant be granted leave to appear and defend the suit filed in the Honourable Court." The application is supported by an affidavit sworn to by the applicant. I can do no better than quote a few paragraphs of the supporting affidavit which provides - "2. That I admit to have appliedfor the loan which is the subject matter of the suit against me. I state that the sum of shillings 30,000, 000/= was granted and paid to me in instalments as shown in annexture to the plaint. 4. That the repayment of the loan was to be done in a period of 21 months effective the expiry of the grace period of six months granted to me. To be precise, I was required to start repaying the loan effective from 291h February 1999 and hence the repayment period has not expired. 6 That I strongly dispute the amount claimed by the respondent/plaint ff and according to my calculations, the 1

7, '! 2 I principal sum and interest thereon due to the respondent as of the date of suit is shillings Thirty Seven Million (Tshs 37m) only and not 41,996,33611 7. 8. That in the premises, it is apparent that there are factual matters to be determined namely:- z) ascertained of the period of repayment; ii) the ascertained of the amount due to the respondent on the date of the suit. At the hearing of the application Mr. Swai learned advocate, represented the applicant and Mr. Mwandambo, learned advocate, represented the respondent. In his oral submission, Mr. Swai adopted the contents of the supporting affidavit, in particular paragraphs 4 and 6 which allege that the date for the liquidation of the loan facility had not as yet expired and that the exact amount of the outstanding loan was in dispute. On his part, Mr. Mwandambo strenuously resisted the application. He was of the view that the contents of the counter-affidavit sufficiently answered the applicant's assertions in the affidavit and helpfully referred me to a number of authorities including Thssen- Stahiunion Export GMBH vs Kibo Wire Industries Ltd (19731 LRT no. 54; and CRDB Bank Limited vs Dantan ElectronicsLtd and Jamila Rasmussen, Commercial Case No.12 of 2000 (unreported). It was the learned advocate's contention that the applicant was using delaying tactics so that the respondent is unnecessarily being kept from what is due to him. The law, on an application of this nature was authoritatively stated in the case of Kundanlal Restaurant v Devshi &Co. [1952] 19 EACA 77 at page 79. In this case, the defunct Court of Appeal for Eastern Africa quoted with approval an extract from the Annual Practice of 1951 which reads - "The principle on which the court acts is that where the defendant can show by affidavit that there is a bonajIde triable issue, he is to be allowed to defend as to that issue without condition. A condition of payment into court ought not to be imposed where a reasonable ground of defence is set up. The condition ofpayment, or giving security, is seldom imposed, and only in cases where the defendant consents or there is good ground in the evidence for believing that the defence set up is a sham defence and the master is prepared very nearly to give judgment for the plaintiff in which case only the discretionary power given by this rule may be exercised. It should not be applied where there is a fair

I probability of a defence nor where the practical result of applying it would be unjustly to deprive the defendant of his defence." This extract was also adopted in Souza Figuerido & Co.Ltd v MoorinRs Hotel Co.Ltd. [1959] EA 425 at page 426; Thseen-Stahlunion Export GMBH v Kibo Wire Industries Ltd 119731 LRT no.54. In the instant application, paragraphs 4, 6 and 8 of the supporting affidavit do set up possible defences to the suit. It is true that in paragraph 6, Shs 37 million appear to have been admitted, but this does not mean that the applicant has no defence for its recovery. It may not be a positively good defence, but I cannot confidently state that the defence is a sham and at the moment I am unwilling to deprive the applicant of his defence. The applicant has in my view raised triable issues fit to go for trial. I In the result, I. do hereby grant to the applicant leave to appear and defend the suit unconditionally. The written statement of defence should be filed on or before the 27.6.2000; reply if any, on or before 30.6.2000. Mention on the 4.7.2000. Costs to be in the cause. It is accordingly ordered. H.R. Nsekela, Judge